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IN THE HIGH COURT OF BOMBAY
Vazifdar S.J., J.
Haroon Rashid Nizamuddin Umatiya .... Plaintiff.
Versus
Jivatlal Purtapshi.... Defendant.
Chamber Summons No. 991 of 2002 in Suit No. 2967 of 2001, decided on 16-12-2002.
Advocates appeared :
Sasidharan, for plaintiff in support of Chamber Summons.
S.J. Purohit i/b. Prakash Co., for defendant.
Snehal Shah i/b. Mehta Co., for respondents.
Specific Relief Act, 1963 - Sections 5 and 10 - Specific performance of agreement of sale - Third party sought to be added - Plea that third party not a necessary party - It should not be added as necessary party - Held - To avoid multiplicity and further elongation of matter, name of third party could also be added. - It is thus clear that there is no question of the subsequent purchaser not being a necessary or proper party in a suit for specific performance of an agreement. A plaintiff may chose to adopt independent proceedings against a subsequent purchaser simultaneously or later. But that would not disentitle the plaintiff from joining a subsequent purchaser in a suit for specific performance. Indeed it would be appropriate in most cases to bring a composite suit. It would avoid multiplicity of proceedings and unnecessary additional expenses. It is clear therefore that the ratio in Anil Singh s case is applicable only in cases where the plaintiff merely seeks to add the subsequent purchaser as a defendant without challenging the sale in his favour or seeking any other reliefs against him. As already held, it would have been open for the plaintiff, in view of the long line of cases including the judgment of the Supreme Court in Durga Prasad s case to seek such reliefs in the plaint as filed. The plaintiffs was however not aware of the subsequent agreement dated 8th November, 2001 when the suit was filed on 24th November, 2001. It would be inequitable and improper then to deny the plaintiff leave to amend. There is no hesitation in rejecting Mr. Shah s submission that the plaintiff must in these circumstances first obtain a decree in this suit and thereafter file a suit against the respondent on the basis thereof. Such a course would not only be contrary to law and result in multiplicity of proceedings but would make a mockery of the process of law.
2. The suit was filed on 24th August, 2001, for specific performance in respect of an agreement dated 26th March, 2001 by which the plaintiff agreed to purchase from the defendant various plots of land. The plaintiff filed Notice of Motion No. 2069 of 2001 for the usual interlocutory reliefs in a suit for specific performance. The defendant in his affidavit in reply disclosed the M.O.U. dated 8th August, 2001, by which they agreed to sell and transfer the suit property to the respondent. The plaintiff therefore filed the present chamber summons.
3. The plaintiff contends that the M.O.U. dated 8th August, 2001 is not valid and binding on him, as it was made invalidity and during the subsistence of his agreement dated 26th March, 2001. The plaintiff has further alleged that the M.O.U. dated 8th August, 2001 is a collusive and fabricated document and as such cannot confer any right in the suit property upon the respondent.
4. Mr. Shah, the learned Counsel appearing on behalf of the respondent opposed the Chamber Summons on two grounds viz. that the respondent is neither a necessary nor a proper party and that the amendment seeks to introduce a new cause of action.
5. In support of his first submission, Mr. Shah, relied upon on a judgment of the Supreme Court in (Anil Kumar Singh v. Shivnath Mishra alias Gadasa Guru)1, 1995(3) S.C.C. 147. In that case the original plaintiff filed a suit for specific performance of a contract by which he agreed to purchase land from the defendant. The plaintiff having died, his son came on record as a legal representative. He sought leave to amend the plaint by impleading the respondent on the basis that the defendant had colluded with his sons and his wife and obtained a collusive decree under the U.P. Zamindari Abolition and Land Reforms Act. Under the decree, the defendant and his said family members became co-sharers of the property. The Supreme Court in paragraphs 8 and 10 held as follows :-
"8. The question is whether the person who has got his interest in the property declared by an independent decree but not a party to the agreement of sale, is a necessary and proper party to effectually and completely adjudicate upon and settle all the questions involved in the suit. The question before the Court in a suit for the specific performance is whether the vendor had executed the document and whether the conditions prescribed in the provisions of the Specific Relief Act have been complied with for granting the relief of specific performance.
10. ..................... The petitioner therein was not claiming this legal status nor through the respondent. In Lala Durga Prasad v. Lala Deep Chand, in a suit for specific performance the subsequent purchaser was held to be a necessary party. In this case the petitioner is merely seeking the specific performance of the agreement of sale. Section 15 of the Specific Relief Act, 1963, provides that except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by "any party thereto", and under section 16, though discretionary, created personal bars to relief under given circumstances enumerated in Clauses (a) to (c) therein. Therefore, based on the fact situation, the Court would mould the relief. The respondent is neither a necessary nor a proper party to adjudicate upon the dispute arising in the suit so as to render an effective and complete adjudication of the dispute involved in this suit." (emphasis supplied).
6. The judgment of the Supreme Court is clearly distinguishable from the case before me. It must be noticed immediately that in Anil Singhs case, while the respondent was sought to be impleaded as a defendant, nothing further was sought to be done
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